Opinion analysis: Warming an EPA worry, at first

Posted Mon, June 20th, 2011 1:31 pm by Lyle Denniston

Analysis

Carefully noting that it was not deciding that global warming is a problem, the Supreme Court ruled Monday that Congress thinks it is, but has assigned the role of dealing with it first to the Environmental Protection Agency, with courts playing only a limited secondary role. The decision, unanimous only in part, blocked state governments and others from going to federal court to file a claim of "public nuisance" in order to get judicial limits imposed on electric power plants' release of "greenhouse gases" that may warm up the earth.

EPA, the Court noted, has promised a final ruling by May of next year on whether it will set controls on greenhouse gas emissions from power plants. But, the decision added, even if EPA eventually decides that it is not going to impose such limits under the federal Clean Air Act, the courts still would not be free to hear "public nuisance" claims under a general common-law theory. However, those individuals or groups who believe that such a hands-off ruling by EPA would fail to fulfill the Act's mandate can then go to court to seek a ruling on what the Act does, in fact, require, the Court made clear in the decision in American Electric Power Co., et al., v. Connecticut, et al. (docket 10-174).

Monday's decision was the Court's second growing out of the global debate over whether the earth is heating up dangerously, and whether human beings are mainly responsible for that. As in the first ruling in 2007, the Court again Monday declined to take sides in that scientific and political debate. "The Court," Justice Ruth Bader Ginsburg wrote in the main opinion Monday, "endorses no particular view of the complicated issues related to carbon-dioxide emissions and climate change."

The Court did, however, reinforce the legal conclusion that it had drawn three years ago (in the case of Massachusetts v. EPA): that is, that the EPA has been told by Congress to treat greenhouse gas emissions as an "air pollutant" under the Clean Air Act, and is obliged to do something about it. So far, EPA has taken steps to regulate emissions from some cars and trucks, and is considering doing so for medium- and heavy-duty vehicles, and has begun "phasing in" some equipment changes at facilities that emit such gases, in addition to its plan to put out a proposed rule by next month (and a final rule by May 2012) to curb emissions at coal-fired electricity-generating plants.

The Clean Air Act, and those actions and plans by EPA, the Court concluded, displace any remedy that might be imposed in court under a "public nuisance" theory. The decision thus put a stop to a spreading series of lawsuits, based on that very theory, that have been designed to attack not only global warming, but other perceived threats to the environment. If any of the targeted activities are covered by a broad federal regulatory law like the Clean Air Act, the new decision would appear to close them down.

While the final vote of the Justices against such "public nuisance" lawsuits was unanimous (although Justice Sonia Sotomayor did not take part), the Court split 4-4 on another issue in the American Electric case: whether states, cities and private land-conservation groups had a right even to go to court with such a lawsuit. The Second Circuit Court had not only found a right to sue, but then went on to rule that a federal District judge could decide the case on the merits, and perhaps set specific ceilings on emissions by power plants.

Because the Court split 4-4 on the right to sue issue, that part of the Second Circuit decision was left intact, but without setting a nationwide precedent. The remainder of the Circuit Court ruling, clearing the lawsuit to proceed against four power companies and the Tennessee Valley Authority, was overturned by the vote of the eight Justices taking part Monday. Justice Samuel A. Alito, Jr., joined by Justice Clarence Thomas, went along with the result, but indicated that they were not yet prepared to embrace the Court's 2007 conclusion that the Clean Air Act does authorize regulation of global-warming gases. The Alito opinion said that he (and Thomas) were only assuming that ruling had been correct, because no one in this case had contended otherwise. Alito and Thomas, along with Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia, were the dissenters in the 2007 decision.

Taking the case on to the Supreme Court, the four electric-generating companies contended that the Second Circuit's clearance of "public nuisance" lawsuits could lead to "staggering" impositions of financial cost on private industry, making the huge dollar settlement of claims against the tobacco companies over the health hazards of smoking "look like peanuts."

The Court, in reaction, did not undertake to assess what impact a series of "nuisance" lawsuits might have. It simply decided that the Clean Air Act, and EPA's actions under that law, were sufficient to occupy the field.

When Congress steps in to pass a law to deal with a problem with which the courts had formerly dealt under common-law theories of liability, Justice Ginsburg wrote for the Court, the need "disappears" for courts to engage in the unusual exercise of fashioning remedies themselves. Congress, the opinion added, is better equipped to get to the bottom of such problems, and find solutions.

The opinion could serve as something of a prod to EPA to go ahead and impose some curbs on carbon-dioxide emissions from power plants. Environmental groups have been complaining that EPA has dragged its feet on the entire global-warming issue. The Court said Monday that it found it plain that the Clean Air Act directly addresses the problem of emissions of carbon dioxide from such facilities. And the opinion offered legal advice on just how those worried over such emissions could go about challenging EPA if it did not move forward, as it had promised to do, to institute regulation of the power plants.

(Justice Sotomayor did not take part in the new ruling, apparently because, in her former role as a judge on the Second Circuit, she was on the three-judge panel that heard this very case, although she left that court and was elevated to the Supreme Court before the Circuit Court had ruled.)

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.